10 Key Financial Considerations on Divorce:
One of the key requirements when assisting separating couples resolve their finances on divorce is the need for them each to provide full and proper financial disclosure of all their assets. When separating, the court expects there to be a “cards on the table” approach to matters, so that a full and clear picture of each of the parties’ assets and liabilities can be assessed in order for there to be a fair division between them both.
But life is not always that simple, and since working in family law I have seen numerous occasions of spouses attempting to either hide assets or inflate liabilities in order to muddy the waters to try and achieve better outcomes for themselves. It is absolutely key when considering any financial settlement to be aware of the various different ways that one spouse may try to avoid proper financial disclosure in order to try and beat the system.
As family lawyers, we know what we are looking for. But for those who are inexperienced in this area, it may not always be completely obvious where to look and what to think about when it comes to the possibility of a spouse trying to hide or misrepresent their finances. The court will take a dim view of any individual who attempts dishonesty or to hide their assets. The court have the power to impose financial orders to reflect this along with the possibility of ordering that person to pay some of the other parties’ costs.
Below I have set out the ten ways that I have seen spouses try and hide assets in a divorce.
Withdrawing Cash During Divorce
By far the most common, but also one of the most difficult to address, is cash. During a divorce, spouses are required to provide 12 months bank statement for all accounts they hold an interest in, but what if those accounts are become drained by constant cash withdrawals?
In one particular case, I represented a wife whose husband was regularly withdrawing, without fail, £500 per month from his personal account. The cash was taken from ATM’s, often the same ones, around the same time each month in one or two withdrawals. Obviously, the consistency of both the timing of the withdrawals and the amount gave rise to a suspicion as to what the cash was for, and where it was going. It was not simply a case of an occasional £20 here and there. Cash withdrawals like this can soon add up to the thousands, and if no proper explanation for where the money is going is provided, the court can draw inferences from any poor explanation. Often a spouse will simply state that they like to hold and pay for things in cash, and the amount taken will often tell you whether that is a credible position or not.
Cryptocurrency in Divorce Settlements
This is a new breed of asset which has only really come to the forefront of family lawyers in the last decade. Highly volatile in terms of value and fluctuations, and highly complex in terms of the computer science behind the blockchain technology (something which is beyond this short article). Cryptocurrency was originally seen as the perfect method for illegal activity transactions due to the nature of it being untraceable. This has now come to become very popular by ordinary people as an alternative investment choice, but in such situations, especially in the context of family law, care needs to be taken.
When dealing with a spouse that holds cryptocurrency, in nearly every occasion I have been faced with issues of them providing proper disclosure of what they hold. Often spouses will simply provide a figure valuation for what they have, without proper details as to the type and amount of the cryptocurrency they actually hold. This raises red flags for family lawyers, as the value of cryptocurrency can wildly fluctuate from day to day. Without knowing what specific cryptocurrency is held, and how much is held, it is impossible to rely on a one off figure valuation on any given day that a spouse may provide.
In addition, there may be issues of a spouse simply denying that they hold cryptocurrency entirely. The nature of the asset means it can essentially be held offline as a series of code which can be written on scrap pieces of paper. In situations like that, careful review of bank accounts should be made to look for payments to cryptocurrency exchanges.
Creating Fake Debts on Divorce
Another method of “hiding” assets is by reducing them falsely. In nearly half of all divorce cases, I have seen one spouse alleging that they owe family money, thus reducing their net asset position. In most cases they allege they have borrowed money for legal fees and that this will need to be paid back, but in other cases it can involve allegations that they need to repay gifts which were given during the course of the marriage. This is common in cases where parties are gifted money from family towards a house deposit during the marriage, where following separation one party alleges it needs to be repaid.
Careful attention needs to be given to the liabilities one spouse says they have. Full documentary evidence should be requested and obtained if a spouse is going to assert that they owe family members or friends money, for example it would be worth asking for any text or email exchanges confirming the amount was to be a loan, rather than a gift.
Don’t Overlook Holding Accounts on Divorce
Nearly everyone has a PayPal account, and most would only ever use it as simple method of paying for things online. Similarly, I have a Wise account which I use to move money overseas when I need to. But these sorts of accounts can also be used to hold money like an ordinary bank account. For example, a bank statement may show a payment of £300 to PayPal, and most would be forgiven for thinking that the spouse has simply purchased something expensive. But that could have been a simple deposit of £300 into the account where it has no in fact been spent but is rather sitting there.
Similarly, in the case of international payments, a spouse may have an overseas account that they have disclosed. A payment may be seen from a UK bank account to a Wise account, where an amount in a different currency is then received in the international account. But without seeing the Wise account in the middle of the transaction, it cannot be confirmed that the original amount deposited was in fact the amount sent to the international account, as some could have been left halfway and remain held and hidden.
In cases like these, it is important to assess the nature of such accounts, and to always request documentary evidence, like 12 months statements, for these alternative forms of bank accounts.
Assets That Could be Sold
People often forget the value of assets a spouse might have that they could turn into readily available cash. Ordinarily, parties should disclose the value of any assets they have with a value over £500, so it is always worth thinking carefully about this. Does your spouse have jewellery, antiques, collectibles or an expensive whiskey collection? They may have an expensive watch or a valuable painting. All of these things should not be overlooked, and often spouses will look to exclude mentioning these sorts of items when providing disclosure to the other. If there is a dispute over their value, then expert valuations can always be obtained. If you happen to sell an asset before or during divorce the value will be included in the overall figures.
In these situations, valuable items that could be sold will be taken into account and can be considered in the same way cash in a bank account by a court.
Locating Secret Bank Accounts on Divorce
It is always worth considering whether your spouse may have a bank account or investment account that you do not know about, as this is more common than many people realise. With the rise in internet banking over the years, a bank account can be opened as easily as sending in a picture of your ID, with statements thereafter send by email only. It is entirely possible accounts can be set up in secret from another spouse.
The best way to keep an eye out for these accounts is with a careful review of regular bank accounts that are disclosed. In situations like this we need to look for transfers to bank accounts with account numbers that are unfamiliar, and make sure the other spouse does not hold an interest in that account.
If your spouse has had a lot of jobs over the years (the average number of jobs a person has over the course of their career is 11) and has not taken steps to combine their pensions, it may be that they hold more pension assets than you are aware of. The disclosure of pension valuations is mandatory in financial disclosure, but situations do arise in cases where one spouse may not disclose the entirety of the pensions that they actually hold. In such a scenario, it may become necessary to request that the Pension Tracing Service (part of the Department for Work & Pensions) gets involved to undertake a search of any missing pensions.
In addition, it is important to know whether or not a spouse over the age of 55 has “cashed in” any of their pensions, and if so, that evidence of where those funds have gone is provided.
Similar to one spouse purporting to have more debts than they actually do (as described above) another method spouses use to reduce/hide assets is to assert that the assets they do hold are actually worth less than what they are. This is notoriously common in cases where there are businesses, as in many cases a spouse may seek to argue that a business interest they hold actually has a nil value, or a smaller value than what is actually the case.
When businesses are involved, we would always recommend that an expert business valuation report is carried out by a chartered accountant. A company accountant acting on behalf of a spouse is not going to be good enough, as a company accountant’s role is to reduce the tax liability for a company/director as much as possible, hence why such valuations tend to always be lower than what they should be.
Under-valuations could also be provided by a spouse for virtually any other asset, like properties, jewellery, cars, shares etc, so it is always important that expert valuation evidence is obtained to confirm valuations which appear to be suspicious, or lower than what would ordinarily be expected.
Monies Owed to Them
When couples are separating it is often the case that one spouse may look to try and offload as much of their assets as they can to third parties, normally children from previous relationships, in an effort to put those assets beyond the reach of their spouse. For example, it may be that shortly before/after separation one spouse suddenly transfers the balance of their bank accounts to a friend or family member on the basis it was a gift. If this is the case, it is important to consider the true nature of the transaction, and if the court has suspicions about the transfer then inferences can be made.
Similarly, a spouse may be owed money by family members for previous loans made to them, but may decline to disclose that they are entitled to such funds. For example, a spouse may lend a family member money for a business, property purchase or to assist with debts, on the basis it is repaid. That amount is considered to be an asset available to the spouse, but it may be that they do not disclose this as part of their financial disclosure when separating.
Other examples of spouses not disclosing monies they are owed could be in cases where they are a director of a business which owes them money in a director’s loan account, or it could be as simple as a spouse overpaying credit cards so that they are actually owed money by their credit card provider.
Finally, it is common especially for spouses with large incomes in professional sector jobs to receive additional benefits as part of their employment which may not always be entirely clear when considering their wage slips and P60. Many professionals may be part of bonus schemes in their employment which can involve entitlement to company shares where businesses meet financial targets. Without a copy of the individuals employment contract, such schemes and rewards may be entirely hidden from the other spouse, and such schemes can result in significant rewards which must be considered when addressing financial disclosure.
What Happens if a Spouse Deliberately Lies/Misleads the Court?
The Family Court has a range of power to deal with a spouse who deliberately lies or misleads the court or their former spouse in their financial disclosure. Any misleading or fraudulent statement or evidence which is made could amount to perjury which can be a criminal offence that may carry the possibility of a prison sentence. In addition, if a spouse has been found to have lied after a settlement has been reached, then the court has the power to set the entire settlement aside, which could also include a claim for costs for litigation misconduct.
The need for full and frank financial disclosure is crucial for couples who are separating, but it is always important to have the skills and knowledge to know what you are looking for once that has been exchanged, and even more importantly, know where and what to look for to ensure that everything has actually been disclosed.
At Maguire Family Law we deal with financial disclosure on a daily basis, and we have seen and dealt with every trick in the book that spouses have tried to use to hide their assets. Taking the right legal advice and guidance could literally mean the difference of tens of thousands of pounds, if not more in some cases.